20090219Approve Bifurcation, Arizona Responses.pdf

riegra
TELECOM
Integra Telecom
6160 Golden Hills Drive
RECE1Vrn GoidenValley,MN55416
. , . '.,. H' ww.integratelecom.com
2009 FEB I 9 AM 9: 14
Febru 18,2009
Jean D. Jewell, Secretar
Idaho Public Utilties Commission
472 West Washington
Boise, ID 83702-5983
Via Email: jeanJewellrMuc.idaho.gov
and Via Overnight Delivery
RE: Docket No. QWE-T-08-04
Dear Ms. Jewell:
Enclosed for filing please find the original and seven copies of Joint CLEC
Responses to Stafs First Set of Data Requests in Arzona Docket Number T-01051B-08-
0613, In The Matter O/The Application O/Qwest Corporation To Withdraw Its
Statement O/Generally Available Terms And Conditions, before the Arzona Corporation
Commission. Qwest also requested that the Arzona Commission allow Qwest to
withdraw its SGAT. Arzona Sta issued data requests to CLECs, and the enclosed Joint
CLEC responses set forth the view of those CLECs (including CLECs paricipating in
this matter) as to why the state commissions in all of Qwests states should reject Qwests
request.
In addition, with ths letter, 360 networks, Level 3, P AETEC and Integra inform
the Commission that they have no objection to bifucating the PIDIP AP issues from the
SGAT issues.
Sincerely,
~~o~~~~¿
Legal Secretar & Reguatory Assistant
Integra Telecom
763-745-8465 (Direct)
763-745-8459 (Dept. Fax)
j il.kowalczyk(ßintegratelecom.com
Enc.
cc: See Attached Certificate of Service
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the foregoing Joint CLEC Responses to
Stafs First Set of Data Requests in Arzona Docket Number T-01051B-08-0613, In The
Matter Of The Application OfQwest Corporation To Withdraw Its Statement Of
Generally Available Terms And Conditions, before the Arzona Corporation Commission
was served on the 18th day of Febru, 2009 on the following individuals:
Via E-mail and Overnight Mail
Jean D. Jewell
Idaho PUC
472 West Washington Street
P. O. Box 83720
Boise,ID 83702
Via E-mail and U.S. Mail
Mar S. Hobson
999 Main, Suite 1103
Boise,ID 83702
Via E-mail and U.S. Mail
Adam L. Sherr
Corporate Counsel
Qwest Corporation
1600 7th Avenue, Room 3206
Seattle, W A 98191
Via E-mail and U.S. Mai
Greg Rogers
Level 3
1025 Eldorado Bo
Broomfield, CO
daho/Case No, QWE-T-08-04/Service/Filing Ltr. 02-18-09
BEFORE THE ARZONA CORPORATION COMMISSION
KRSTIN K. MAYES, CHAIRMAN
SANDRA D. KENNEDY, COMMISSIONER
PAUL NEWMAN, COMMISSIONER
GARY PIERCE, COMMISSIONER
BOB STUMP, COMMISSIONER
20fJ9FEB /9
,~ 4119:14
UrfLW;?J~O4t.,
IN THE MATTER OF THE APPLICATION )OF QWEST CORPORATION )
TO WITHDRAW ITS STATEMENT )
OF GENERALY AVAILABLE TERMS )AND CONDITIONS )
JOINT CLEC RESPONSES TO STAFF'S FIRST SET OF DATA REQUESTS
DOCKET NO.
T -01051B-08-0613
On approximately Januar 30, 2009, Sta submitted its First Set of Data Requests to
360networks (USA) inc. ("360networks"); DIECA Communcations, Inc. d//a Covad
Communcations Company ("Covad"); Electric Lightwave, LLC. ("ELI"), Eschelon
Telecom of Arizona, Inc. ("Eschelon") and Mountan Telecommuncations of Arzona,
Inc. ("MTI"), all d//a Integra Telecom ("Integra"); Level 3 Communications ("Level
3"); McLeodUSA Telecommunications Services, Inc. d//a PAETEC Business Services
("P AETEC"); tw telecom of arizona llc ("tw"), and XO Communcations Services, Inc.
("XO") (collectively referred to as "Joint CLECs"). The Joint CLECs submit the
following objections and responses to Staffs First Set of Data Requests:
GENERA OBJECTIONS TO ALL DATA REQUESTS
1. The Joint CLECs object to the Requests to the extent they are vague, over-
broad and/or unduly burdensome.
2. The Joint CLECs object to the Requests to the extent they seek
information subject to the attorney-client privilege, work product doctrne, or any other
privilege recognzed by the State of Arzona and information that is trade secret,
confidential, sensitive, competitive in natue or proprietar.
3. The Joint CLECs object to the Requests to the extent tht they seek
information that is not relevant or reasonably calculated to lead to the discovery of
admissible evidence.
4. The Joint CLECs object to the Requests to the extent that they seek a legal
conclusion.
RESPONSES
Subject to, and without waiving, the foregoing objections, the Joint CLECs
provide the following Responses. The enclosed documents are incorporated by
reference.
1
STF REQUEST NO. 1.1
Has CLEC made use of Qwests Statement of Generally Available Terms ("SGAT") in
the last five years? If yes, please (1) provide all approximate dates of such use; (2) the
reasons for such use; and (3) whether such use included the paricipation of Qwest?
JOINT CLEC RESPONSE TO STF NO. 1.1:
Yes. Joint CLECs have made use of Qwests SGAT in the last five years. The dates of
Joint CLEC use of the SGAT include the entire five-year period and before.
Regarding the reasons for SGAT use, generally the Joint CLECs have used the SGAT as
a key source to help frame interconnection agreement ("ICA") negotiation positions; as a
resource for attempting to resolve disputes with Qwest such as in biling, carier relations,
and Change Management Process ("CMP") contexts; i and as an internal resource such as
to confinn Commission-approved terms and fied requirements (such as Commission-
approved rates, which are identified in SGAT Exhbit A, and PIDsIP AP requirements in
SGAT Exhibits B and K). See also discussion in Idaho Level 3 and 360networks &
P AETEC and Integra Comments2 and Colorado Eschelon Brief.3
Some of the SGAT use included paricipation of Qwest and some did not. For example,
negotiations and arbitration 4 with Qwest based on SGA T language included Qwest
paricipation (including Qwest advocating that SGAT language should be adopted in
certn cases5). CLEC use of the SGAT for internal business puroses (e.g., to verify
Commission-approved rates in SGAT Exhibit A and operation of PIDsIP AP in SGAT
Exhbits B and K) did not include Qwest paricipation.
See, e.g., CLEC Objection to Qwests use ofNon-CMP Notices that Change Rates and
Application of Rates and attched example regarding Qwests Multiple Collocation Rates notice, in which
Qwest indicated that, for three rate elements specific to two tyes of collocation, Qwest would apply them
more broadly to all tyes of collocation (Bates Nos. 1 -13). After Integr objected and explained how these
elements are used in the SGAT, Qwest said it would retract the notice "in favor of fiing this change in
upcoming cost dockets in each state." (Bates No. 12.) In other words, use of the SGAT was useful in
resolving a dispute that otherwise may have come before the Commission outside of a cost docket.
2 See In the Matter of the Petition ofQwest Corporation Requesting Authorization to Withdraw its
Statement of Generally Available Terms and Conditions, Docket QWE-T-08-04, Comments of Level 3 and
36Onetworks (July 3,2008) (copy enclosed); Comments of Integr Telecom and PAETEC (July 8, 2008)
(Bates Nos. 14-22); see also Comments of the Commission Staff (July 7, 2008) (Bates Nos. 41-45).3 In the Matter of
the Petition OfQwest Corporationfor a Variance from the Requirement to
Maintain a Tarifffor the Resale and Wholesale Services It Provides to Other Telecommunications
Carriers, Pursuant To 4 CCR 723-2-25-2(C)(V, 2504(1), 2506(A) through (D) (I) AND (E) AND 2585(A)
Docket No. 07V-17lT, Legal Brief of Eschelon Telecom of Colorado, Inc. (August 31, 2007) (Bates Nos.
46-58); see also CO PUC Decision No. C07-1095 (59-76).
4 See, e.g., "Qwest-Eschelon AZ ICA Arbitrtion," ACC Docket Nos. Docket Nos. T -03406A-06-
0572; T-01051B-06-0572. Eschelon also used the SGAT (and Qwests use of an ICB expedite rate in
SGAT Exhibit A) in its Arizona expedite complaint case. See ACC Docket Nos. T-03406A-06-0257, T-
O 105lB-06-0257.
5 See, e.g., testimony of
Mr. Easton of Qwest in Qwest-Eschelon AZ ICA Arbitrtion (quoted below
in Joint CLEC Response to STF No. 1.4). (Bates Nos. 147-150.)
2
Furher CLEC use of the SGAT in the last years - in paricular, use of the SGAT for the
purose of opt-in - has been limited by Qwests unilateral anouncement on November
15,2006 that "SGATs are no longer available to opt into and have been replaced with the
Negotiations Template Agreement (NTA)." See Qwest Levell CMP notice
PROS.l1.15.06.F.04322.MultLangChangeforSGATs (effective Nov. 15,2006) (Bates
Nos. 77-78).
Although the Commission recently confirmed that the SGAT remains "available for opt-
in,,,6 Qwest in reality does not make it available for opt-in and has not for a period of
years, despite the Commission's earlier order.7 Therefore, CLEC use of the SGAT has
been limited to using the SGA T primarly as "reference documents"g not by choice in
every case but because that is the only use that Qwest unilaterally allowed.
Before Qwest's unlateral anouncement, CLECs in Arzona opted in to the SGAT,
including Qwests affiliate, Qwest Communications Corporation. See, for example:
Interconnection Agreements between Qwest Corporation and CityNet Arzona,
LLC effective Januar 26, 2004 by Decision No. 66756; IDT America, Corp.
effective Janua 26, 2004 by Decision No. 66754; Sprint Communcations
Company, LLP effective April 15, 2004 by Decision No. 66929; Qwest
Communications Corporation effective December 20, 2004 by Decision No.
67473; SBC Long Distance effective October 14, 2004 by Decision No. 67374;
Telscape Communcations, Inc. effective April 15, 2004 by Decision 66931;
WilTel Communcations, LLC effective Janua 26, 2004 by Decision No. 66755.
Level 3 has continued to request opt-in of the SGAT and has been allowed to opt-in in
Montaa. See Order Granting Motion to Withdraw Petition for Arbitration and to Opt
Into Qwests "SGAT," MT Docket No. D2005.l2.174, Order No. 6715a (Aug. 1,2007)
(Bates Nos. 80-87). A decision has not yet been issued in South Dakota. See Level 3
Comments in Reply to Qwests Response, SD Docket No. TC06-007 (July 23, 2007)
(Bates Nos. 88-97).
Respondent: Douglas Denney, Integra - Joint CLEC Witness
6 ACC Docket Nos. T-03406A-06-0257, T-OI05IB-06-0257, Decision No. 70557 (Oct. 23, 2008),
l' 28, lines 10-11.See 271 Opinion and Order, Arizona Decision No. 66201 in ACC Docket No. T-00000A-97-0238
(Aug. 25, 2003) ("ACC Decision No. 66201"), p. 28 ("It is fuher ordered that Qwest Corporation's
SGAT, as modified from time to time after Commission approval, shall remain available, as the standard
interconnection agreement, until the Commission authorizes otherwise.") (emphasis added).
8 See 12/5/06 Email by Qwest's Wholesale CMP (Lyn Stecklein) (quoted in Response to STF No.
1. below) (copy enclosed). (Bates No. 79.)
3
STF REQUEST NO. 1.2
Has CLEC ever requested that Qwest update its SGAT in the last five years? If yes, (1)
please explain when such requests were made; and (2) if such requests were made in
writing please provide copies of any corresponding communications.
JOINT CLEC RESPONSE TO STF NO. 1.2:
In its November 29,2006 objection to Qwests notice to CLECs that the SGAT would no
longer be available for opt-in (see Joint CLEC Response to STF No. 1.3), Eschelon said:
"Qwest should have been updating the SGATs (as it has indicated on several occasions it
would do) and it should not withdraw them without Commssion approvals." (Bates No.
80.)
Because Qwest was promising to CLECs that it would update the SGAT virtly until
the time that Qwest anounced it would no longer make the SGAT available for opt-in,
there was no known need to ask Qwest to update the SGAT (i.e., something Qwest had
already committed to do). For example, in Janua 2005, Qwest said to 360networks:
"we are not allowing opt-in to the SGATs until the SGATs have been re-jled with the
States to be compliant with current law" (emphasis added; Bates No.98).
See also, e.g., from Qwest-Eschelon AZ ICA Arbitration, Hrg. Ex. E-8 (Stakey
Surebuttl), pp. 31, line 12 - 32, line 12 (Bates Nos. 108-109):
Furermore, Qwest has said over time that changes will be made in conjunction with
SGAT updates. Qwest has taken this position in CMP, though its service
management team, and in ICA negotiations.
On June 30, 2005, Qwest committed to CLECs in CMP:
'... as SGAT language changes, we will have a comment period and that
the States will engage you when decisions are made. Cindy also said that
PCAT changes will be brought through CMP.' 131
On March 29, 2006, Qwest service management similarly told Eschelon:
'As agreed to at CMP, the PCATs/Business Procedures associated
specifically to TRRO are handled outside the scope of CMP until such
time that there is an approved SGAT, which is why the change was
noticed as a non-CMP document.' 132
On April 6, 2006, the Qwest ICA negotiations team similarly told Eschelon:
'From those discussions it was agreed that until such time that a SGAT is filed
and the TRRO related issues were finalized that all of the TRRO processes and
issues would be deferred from a CMP perspective.
13'"
13 Exhibit BJJ-7, pp. 8-9 (6/30/05) (emphasis added). (Bates NO.1 14-1 15.)
4
132 Exhibit BJJ-7, p. 11.
133 Exhibit BJJ-7, p. 12 (4/6/06)(emphasis added). . .. (Bates No. 116.)
Respondent: Douglas Denney, Integra - Joint CLEC Witness
5
STF REQUEST NO. 1.3
Did Qwest send your Company a notice through its Change Management Process
("CMP") or another process that it was withdrawing its SGAT in Arzona? If yes, please
attch a copy of the notice.
JOINT CLEC RESPONSE TO STF NO. 1.3:
Qwest sent a notice to certin CLECs (that were signed up to receive CMP
notices/emails) on November 15,2006 that "SGATs are no longer available to opt into
and have been replaced with the Negotiations Template Agreement (NTA)." See Qwest
Levell CMP notice PROS.l1.15.06.F.04322. MultLangChangeforSGATs (effective
Nov. 15,2006) (Bates Nos. 77-78). Qwest did not state in the notice that it was
"withdrawing" its SGAT (though, in effect, Qwest withdrew it from opt-in availability as
a practical matter), and Qwest did not ask the Commission for approval to withdraw it.
Although Qwest inappropriately chose to use a Levell notice (which does not allow for
comments/objections), Eschelon objected in CMP to Qwests CMP notice (Bates No. 79).
Qwests Wholesale CMP (Lyn Stecklein) responded on 12/5/06 that: "Qwest will not
withdraw the notice and will not be republishing the duplicate SGATs. SGATs have not
been withdrawn and continue to be available as reference documents via the Quick
Links located on the right side of the wholesale web page. The Negotiations Template
Agreement which incorporates provisions of the SGATs is the staing point for a CLEC
wanting to enter into an interconnection agreement with Qwest,,9 (emphasis added)
(Bates No. 79).
Even before Qwest sent its 11115/06 CMP notice, Qwest had said it did not "allow" opt-
in to the SGAT. In a 1112/05 email to 360networks, Qwest said: "we are not allowing
opt-in to the SGATs until the SGATs have been re-fied with the States to be compliant
with curent law" (emphasis added; Bates No. 98). That was durng the time period when
Qwest was stil representing to CLECs that it would update the SGAT to reflect the
TRO/TRRO and fie the revised SGATs with the state commissions for approval. 10 (See
Joint CLEC Response to STF No. 1.2.)
On Januar 10, 2008, Qwest distrbuted a non-CMP notice to CLECs entitled "Multiple
PCAT correction for SGAT" in which Qwest said the purose of the multiple changes to
its Product Cataog ("PCAT") was "to eliminate the Statement of Generally Available
Terms and Conditions (SGAT) links and references." See Qwest non-CMP notice
PROS.01.1O.08.F.05142.SGAT_updt_Collo_Overviews (effective Jan. 11,2008)
(emphasis added; Bates Nos. 119-120). Although it was a non-CMP notice (so there is
no formal objection opportty), Eschelon objected, stating: "Regarding the enclosed
notice, it is unclear to us what it means. It appears to be fuher unilateral action by
Qwest to withdraw the SGATs without going to the Commission. In Arizona, for
9 Compare ACC Decision No. 66201, p. 28 ("It is fuher ordered that Qwest. . . SGAT . . . shall
remain available, as the standard interconnection agreement. . . .") (emphasis added).10 Qwest knew it should modifY the SGAT and seek Commission approval for the modifications.
See ACC Decision No. 66201, p. 28 ("It is fuer ordered that Qwest .. .SGAT, as modifed/rom time to
time after Commission approval, shall remain available. . . .") (emphasis added).
6
example, the Staff said in its recent brief in ACC Docket No. T -03406A-06-0257 (p. 35):
'Qwest has effectively withdrawn its Arizona Statement of Generally Available Terms
and Conditions ('SGAT') in violation ofa Commssion Order. Commission Decision No.
66201 required Qwest to obtain Commission approval prior to withdrawing its SGAT.'
Please explain why Qwest is not going to the Commssions first before tang steps to
fuer reduce access and references to the SGATs" (Bates No. 121).
Respondent: Douglas Denney, Integra - Joint CLEC Witness
7
STF REQUEST NO. 1.4
It is the Commission Staff s understading that Qwest is now utilizing a template
interconnection agreement that has not been approved by the Commission. Should the
Commission require Qwest to file its template interconnection agreement with the
Commssion for approval in lieu of requiring Qwest to update its SGAT? If not, why not?
JOINT CLEC RESPONSE TO STF NO. 1.4:
No, paricularly not "in lieu of requiring Qwest to update its SGAT." Qwest's
unlaterally developed web-posted template negotiations proposal is no substitute for the
collaboratively developed SGAT. Although Qwest claims that its negotiations template
proposal "incorporates provisions of the SGATs,,,11 to the extent that is the case, those
provisions are already available via the publicly filed SGAT. The remainder of the
Qwest negotiations template proposal is Qwest's "wish list" ofICA terms. It is merely
Qwest's going-in position for negotiations. Each CLEC has a right to propose its own
going-in position for ICA negotiations. Qwest nonetheless has refused to work from
those proposals (even when the CLEC proposal is the existing ICA between the pariesl2)
and insists that its own proposal must be ''the staing point/or a CLEC wanting to enter
into an interconnection agreement with Qwest.,,13 In contract negotiations, a company
generally does not go to the table and say to the opposing pary "let's sta with your
proposal." A CLEC's negotiations proposal should be given no less weight than Qwest's
negotiations proposaL.
Any fiing of the Qwest negotiations template cares with it the risk that Qwest's
template will then be given more weight than a CLEC's negotiations proposal on any
given issue, simply because the Qwest proposal has been fied with the Commission. In
no event should Qwest's negotiations template proposal be viewed as a default ICA.
Because the SGAT has been, as a practical matter, unavailable for opt-in (due to Qwest's
unlateral anouncement), Qwest already maitans an advantage in negotiations, to the
extent tht its resources to arbitrate are greater than those of a paricular CLEC, because
Qwest can force a CLEC into time-consuming and costly arbitration rather than offer any
term different from its negotiations template (including SGA T terms that vary from the
template). This advantage would be even greater if, once the disputed issues are
arbitrated before the Commission, Qwest's template language is given any kind of
preference or inference of validity due to its having been fied with the Commission.
11 See 12/5/06 Email by Qwests Wholesale CMP (Lyn Stecklein) (quoted in Response to No. 1.3)
(copy enclosed). (Bates No. 79.)12 See, e.g., McLeod (now P AETEC) Petition for Mediation, MPUC Docket No. P-5323,421/M-07-
609, p. 1 (Bates Nos. 123-132); Qwest-Eschelon AZ ICA Arbitrtion, Hrg. Ex. E-7 (Stakey Rebutt), p.
154, lines 8-10 ("Eschelon's initial proposal was to use the paries' existing approved interconnection
agreement as a staring point for negotiations").
13 See 12/5/06 Email by Qwest's Wholesale CMP Manager (Lyn Stecklein) (quoted in Response to
No. 1.3) (Bates No. 79); see also Qwest curent web page ("A CLEC or Reseller may use the Negotiations
Template Agreement to serve as the staing point for negotiations for an Interconnection Agreement.") at
htt://www.qwest.com/wholesale/clecs/negotiations.html(Bates No. 133.)
8
Per Section 252(i) of the 1996 Act, the fied and approved ICAs (including ICAs based
on the SGAT) are available for opt-in (not one par's negotiation positions). The Act
provides that Qwest may file a negotiated or arbitrated ICA for Commission approval
(Section 252(a)), and Qwest may file an SGAT for Commission approval and subject to
continuing Commission review (Section 252(f)). As Qwest is the only par to its
template proposal (i.e., by itself the template is not negotiated or arbitrated), a filing of
Qwests template proposal does not fall with Section 252(a). To the extent that Qwest
would file its negotiations template proposal as a "statement of the terms and conditions
that such company generally offers" within Arzona under Section 252(f)(1), there is
already such a statement in place (i.e., the SGAT). Therefore, any such Qwest filing
would fall within Section 252(f)(4) (Authority to Continue Review), and the burden
would be on Qwest to identify each proposed change to the existing SGA T and to
establish why each one complies with Sections 252(d) and 251andthe regulations
thereunder. Section 252(f)(2) provides that the Commission "may not approve" a filing
without finding that those stadads have been met. The curent SGAT was subject to
workshops and other proceedings before the Commission made the requisite
determination. Before engaging in such a review, the Commission should consider the
timing (paricularly in these economic times), burden, and other factors afecting such a
proceeding (see also Joint CLEC Response to STF Request No. 1.11) and consider the
reasonableness of Joint CLECs' position that instead the SGAT should remain available
for opt-in, subject to its change in law provision (see Joint CLEC Response to STF
Request No. 1.5).
Regarding timing, as well as the suitability of Qwests negotiations template for filing
under Section 252(f)(l), the Commission should consider that Qwest previously rejected
offers to collaboratively develop the template terms. As stated in the testimony of
Eschelon's witness in the Qwest-Eschelon AZ ICA Arbitration (Hrg. Ex. E-7, Stakey
Rebuttl, p. 40, lines 1-11) (Bates No. 103):
Qwest soundly rejected two opportties for input from all interested carers in
this very negotiation and arbitration as well as in CMP. First, Eschelon asked
Qwest to agree to coordination and paricipation of other CLECs in these ICA
negotiations, but Qwest said no.14 Second, Eschelon asked Qwest to use CMP to
allow CLECs to have input into development of its new template and for Qwest to
provide status information to CLECs about the template, but Qwest also flatly
rejected the offer, indicating that "this is not a CMP issue.,,15 Both of these offers
show that Eschelon welcomed multiple CLEC paricil-ation. In contrast, despite
Qwest s many claims of concern about other CLECs, 6 Qwest would not agree to
14 (Starkey footnote 135) See, e.g., Exhbit BJJ-25 (Qwest-Eschelon letter exchange dated Sept. 23,
2003, Oct. 9,2003, Oct. 17,2003). (Bates Nos. 135-143.)15 (Starkey footnote 136) Exhibit BJJ-24 (Qwest Feb. 4, 2003 email). (Bates Nos. 144-146.)
16 (Stakey footnote 137) The Commission should be extremely skeptical ofQwest' s implication that
it is acting out of a desire to somehow "protect" other CLECs. As the FCC has observed:
Incumbent LECs have little incentive to faciltate the abilty of new entrants,
including small entities, to compete against them and, thus have little incentive to
provision unbundled elements in a maner that would provide effcient
competitors with a meaningful opportity to compete. We are also cognizant of
9
paricipation of other CLECs regardless of the context - negotiation, arbitration,
orCMP.
In contrast to Qwest s unilateral approach to developing its template, Qwest admits that
the language in the SGAT was developed collaboratively. See, e.g., Qwest-Eschelon AZ
ICA Arbitration, Hrg. Ex. Q-5 (Easton Direct), p. 14, lines 8-9 (the "language in the
SGAT. . . was developed by the CLECs and Qwest durng the Section 271 workshops
and approved by the Commssion") (Bates No. 148.); Hrg. Ex. Q-8 (Easton Surebuttal)
("biling issues were discussed at length durng the 271 process and, where possible,
CLECs and Qwest reached consensus on the billng language. Where consensus was not
possible, an arbitrator examined the paries' positions and recommended language.")
(Bates No. 150.).
As indicated in Joint CLEC Response to STF No. 1.1, Joint CLECs have used the
collaboratively developed SGAT as a resource in formulating negotiation positions in
response to Qwests unilaterally developed negotiations template. For example, Eschelon
individualy expended substantial time and resources to review contract languge,
including the SGAT, the Qwest-AT&T contract (which was based upon the SGAT, with
modifications), and when available the Qwest template proposal, to formulate, negotiate,
and arbitrate its new Arzona ICA (pending approval). Meantime, Eschelon's now
affiliated entity Electric Light Wave ("ELI") is in ICA negotiations with Qwest in which
ELI had to expend the resources to redline the Qwest template, as Qwest insists on use of
its template as a staing point for negotiations, and did not use the recently arbitrated
Arizona Qwest-Eschelon ICA, despite the work of both paries on that document. While
Eschelon's preference - and the approach it advocated to Qwest (see above) - would
have been to paricipate in a multi-CLEC and Qwest foru at that time, Qwest refused to
cooperate in that approach, and time-consuming and costly individua efforts were
necessar. If, at ths late date, the negotiations template is litigated before the
Commission, Eschelon and ELI (like other CLECs in this position) are faced with the
prospect of having to either (1) expend additional resources for issues already negotiated
or arbitrated or (2) not paricipate to save resources and risk that erroneous or unsuitable
template provisions are approved (more because they are unopposed than that they are
valid) and thus become virtally impossible to defeat when the time comes to arbitrate
any open issues remaining after negotiations between ELI and Qwest.
Qwest s choice to unilaterally declare the SGAT unavailable for opt-in, 1 7 despite a
Commission order that it be available for opt_in,18 should not be rewarded by allowig
Qwests conduct to become a self-fulfilling prophecy so that, now, the SGAT is no longer
the fact that incumbent LECs have the incentive and the abilty to engage in may
kinds of discrimination. For example, incumbent LECs could potentially delay
providing access to unbundled network elements, or they could provide them to
new entrants at a degraded level of quality. First Report and Order, ir 307.
Qwest Levell CMP notice PROS. 1 1.5.06.F.04322. MultLangChangeforSGATs (effective Nov.
15,2006) (Bates Nos. 77-78).18 ACC Decision No. 66201, p. 28 ("It is fuer ordered that Qwest Corporation's SGAT, as
modified from time to time after Commission approval, shall remain available, as the standard
interconnection agreement, until the Commission authorizes otherwise.") (emphasis added).
17
10
available and is replaced by Qwest's template. The SGAT should remain available for
opt-in, subject to its change in law provision. (See Joint CLEC Response to STF Request
No. 1.5.) Changes in law may be dealt with individually by amendment. (See id.) If,
however, a generic proceeding is initiated to review generally available terms, the basis
for review in that proceeding should be the curent SGAT and whether it requires any
specific modifications, and not Qwests template proposaL. (See Joint CLEC Response to
STF Request No. 1.11.)
Despite CLEC requests, Qwest does not post the filed and approved ICAs that are
available for opt-in on its wholesale web page.19 (In fact, Qwest recently removed from
its web-page the little posted information about fied ICAs that been on its web page.20)
Instead, Qwest posts its own negotiations template proposal.21 Although fied and
approved ICAs are maintaned on the Commission's website, they appear to be organzed
by company and are not always easy to identify and locate when determining which ICAs
are available for opt-in in Arizona. The Commission should either require Qwest to
maintain Arizona ICAs available for opt-in (in a searchable format) in a central, readily
identifiable location on Qwests web page, or the Commission should post a list ofICAs
available for opt-in in a central place on its own website (makng them easier to locate on
that site), or both.
Respondent: Douglas Denney, Integra - Joint CLEC Witness
19 PROS.0i.09.09.F.05946.ProvisionsAvailjorOt_ln, Qwest Level 2 CMP Notice (Effective Jan.
30,2009) at p. 1: CLEC Comment (Integra requests Qwest post ICAs available for opt in) (Bates No. 166)
and Qwest Response ("Qwest wil not be posting the Interconnection Agreements as has been expressed
previously") (Bates No. 166).
20 PROS.Ol.09.09.F.05946.ProvisionsAvailjorOpt_In, Qwest Level 2 CMP Notice (Effective Jan.
30,2009) (Bates No. 167-169).21 See htt://www.qwest.com/wholesale/clecs/negotiations.html (Bates No. 133).
11
STF REQUEST NO. 1.5
Do you believe that the continued availabilty of an updated SGAT or template ICA in
Arzona is beneficial or stil important? Please explain your answer.
JOINT CLEC RESPONSE TO STF NO. 1.5:
Continued availabilty of the SGAT in Arzona is beneficial and important to promoting
competition. To the extent that Qwest is claiming that the SGAT is out-of-date and needs
to be "updated" because Qwest prefers other language at this point in time, that is not a
valid basis on which to make the SGAT unavailable. To the extent that Qwest is
claiming that the SGAT is out-of-date due to changes in law, the SGAT already accounts
for changes in law. (See AZ SGAT §2.2.) The Commission should confrm that the
SGAT remains available for opt-in in Arzona, subject to its change in law provision.
SGAT Section 2.2 provides (with emphasis added) that, in the event of a change in law,
"this Agreement shall be amended to reflect such legally binding modification or change
of the Existing Rules." Therefore, any CLEC that opts in to the SGAT may do so with an
amendment to reflect changes in law.
The TRO/TRRO represents a change in law. In the wire center docket (ACC Docket
Nos. T-03632A-06-0091, T-03267A-06-0091, et al., Decision No. 70355), the
Commission approved a settlement agreement that requires Qwest to make generally
available to all other requesting CLECs the TRO/TRRO ICA languge that is attached to
the settlement agreement as Exhbits B, C, and D. (See Exhibit A to Decision No. 70355,
Multi-State Settlement Agreement, at ~II(A)(4), p. 15 of 18.f2 Therefore, any CLEC
may request to opt into the SGAT, along with the TRO/TRRO settlement agreement
language already generally available to it, to "update" the SGAT to reflect the change in
law. The CLEC will then have an ICA that is up-to-date with respect to the TRO/TRRO
changes in law.23 If Qwest or the CLEC identifies other changes in law, SGAT Section
2.2 requires that those changes in law be included in an amendment(s) as well, and they
may be negotiated or arbitrated with each CLEC accordingly.
The Commission should require Qwest to issue a Level 1 CMP notice that reverses
Qwests Levell CMP notice PROS.l1.15.06.F.04322.MultLangChangeforSGATs
(effective Nov. 15,2006) (Bates No. 77-78). Qwest should be required to send the notice
to all CLECs in Arizona. The Commission should require that the notice state that the
Arzona SGAT is available for opt-in in Arzona, subject to the SGAT's change in law
22 In Decision No. 70355 (p. 34), the Commission ordered that the settlement agreement does not
bind any par that is not a signatory and that non-par CLECs retain all their rights pursuant to Sections
251 and 252 of the 1996 Act. Therefore, while CLECs have the right to accept the TRO/TRRO language in
Exhibits B, C, or D to the settlement agreement, they do not have to do so and may negotiate or arbitrte
different TRO/TRRO language to amend the SGAT.
23 Several CLECs (including Covad and XO) had signed TRO/TRRO amendments with Qwest
before enterig into the settlement agreement, and Exhibit B to the settlement agreement modifies those
earlier amendments. See Exhibit A to Decision No. 70355, at ,rII(A)(l)(a), p. 14 of 18. Therefore, a
CLEC opting into the SGAT, as amended by the Covad or XO TRO/TRRO amendment, as modified by
Exhibit B, would have an ICA that is "updated" to reflect the TRO/TRRO changes in law.
12
provision. Qwest does not post Exhibits B, C, and D of the settlement agreement on its
web page as available ICA language, despite requests to post them.24 The Commission
should also require that the notice make clear that, while CLECs are not obligated to
accept it, the TRO/TRRO language in Exhibits B, C, and D of the settlement agreement is
available to them for purposes of amending the SGAT to reflect TRO/TRRO changes in
law. Because Qwest posts its own template TRO/TRRO amendment on its website,
Qwest should also be required to post Exhbits B, C, and D of the approved settlement
agreement on its website, in the same location (or, alternatively, to include them as
attachments to the CMP notice), so that CLECs know their rights and have the language
of Exhibits B, C, and D available to them for consideration when opting-in to the SGAT
as amended for change in law.
Qwest frames the issue as the SGAT is out-of-date so it should not be available for opt-
in. Qwest's position ignores the SGAT's change in law provision, which allows opt-in of
the SGAT, as amended to reflect changes in law. The SGAT does not have to be
"updated" to reflect those changes in law in a generic proceeding, paricularly as in these
economic times cariers do not have the resources to paricipate in a Commission
proceeding to update it at ths late date (when Qwest failed to do so in a timely maner).
(See Joint CLEC Response Nos. 1.5 & 1.11.) Section 252 of the 1996 Act contans
mechanisms for negotiation and arbitration of changes in law. Those mechansms,
combined with the SGAT's requirement that it "shall" be amended for changes in law,
allow CLECs to opt-in to the SGAT while protecting Qwests desire to "update" the
SGA T to reflect changes in law in each case.
The Qwest template ICA proposal is not a substitute for the SGAT and its availability as
a substitute for the SGA T would not be beneficiaL. The Commssion should (l) confir
that the SGAT remains available, subject to its change in law provisions, and (2)
expressly reject Qwests template ICA proposal as any kind ofSGAT replacement or
"standard" ICA, along with expressly stating that there is no presumption of validity or
compliance associated with Qwests template ICA proposal (see Joint CLEC Response to
STF No. 1.11.).
24 In response to CLEC requests to post the settlement agreement exhibits, Qwest sent a one-time
notice to "Select CLECs" in Arizona notifying them ofthe availabilty of the wire center language. See
GNRL.06.03.08.B.004102.AZ_ Wire_Cntr_Stt_Agree (June 3, 2008) (Bates Nos. 151-152, along with
email exchange, Bates Nos. 153-165). Qwests service managers, rather than directing CLECs to this
paricular notice, direct CLECs seeking a TRRO amendment to Qwest s web page. Qwest s web page
contains, as available language, Qwests TRRO amendment, but not Exhibits B, C, and D of the settlement
agreement, even though the approved settlement agreement requires Qwest to make generally available to
all other requesting CLECs the TRO/TRRO ICA language that is attched to the settlement agreement as
Exhibits B, C, and D. (See Exhibit A to Decision No. 70355, Multi-State Settlement Agreement, at
iJII(A)(4), p. 15 of 18.)
13
When discussing the opt-in provision (when an SGAT is in place) under Section 252(i),
the FCC said:
We conclude that the nondiscriminatory, pro-competitive purose of section
252(i) would be defeated were requesting cariers required to undergo a lengty
negotiation and approval process pursuant to section 251 before being able to
utilze the terms of a previously approved agreement. 25
Respondent: Douglas Denney, Integra - Joint CLEC Witness
In the Matter of Implementation of the Local Competition Provisions in the Telecommunications
Act of 1996, Before the Federal Communications Commission, CC Docket No. 96-98, Aug. 8, 1996, '337.
25
14
STF REQUEST NO. 1.6
If Qwests template interconnection agreement is not subject to Commission approval,
what if any, impact wil that have on your Company's ability to negotiate favorable ICA
terms and conditions with Qwest? Please explain your answer.
JOINT CLEC RESPONSE TO STF NO. 1.6:
Provided that the SGAT remains available for opt-in subject to its change in law
provision and Qwest s template negotiations proposal is not given any special status or
accorded any inference of validity (more than any other pary's going in negotiations
positions), CLECs' abilty to negotiate ICA terms and conditions will be less
disadvantaged than if the SGA T is withdrawn or the Qwest template proposal is accorded
special status. (See Joint CLEC Response Nos. 1.4, 1.5 & 1.11.)
Respondent: Douglas Denney, Integra - Joint CLEC Witness
15
STF REQUEST NO. 1.7
Should Qwest be required to file any of the attchments to Qwests Arzona SGAT with
the Commission for approval? Should Qwest be required to seek Commission approval
before it withdraws any of the attachments to its SGAT?
JOINT CLEC RESPONSE TO STF NO.1. 7:
Yes. Qwest should be required to continue to fie updated Exhbit A (rates), Exhibit B
(Performance Indicator Definitions, or "PIDs") and Exhibit K (Performance Assurance
Plan, or "PAP") to the SGAT with the Commission for approval,26 regardless of whether
the SGAT is maintaned or withdrawn. Qwest should be required to seek Commission
approval before it withdraws any of the exhbits/attchments to its SGAT?7 (See also
Joint CLEC Response to STF No. 1.8.)
Although Qwest, without prior Commssion approval, stopped updating the body of the
SGAT in 2003,28 Qwest continued to update Exhibits A, B and K to reflect Commission
decisions. Qwests web page indicates a date of Febru 10,2005 for SGAT Exhibit
A.29 Exhibits B and K were most recently updated on June 19,200830 as a result of
Commission Decision No. 7038631 in Qwest's Performance Assurance Plan Docket.
It is crucial that CLECs have a publicly available, readily accessible source of Arzona
Commission ordered rates, as well as Commission ordered terms to Qwest s PAP and
corresponding PIDs. Because Qwest makes these filings (and posts these exhibits on its
web page, albeit curently only as alleged "reference" documents), disputes are
eliminated or minimized because CLECs may point to the Qwest filings (and Qwest web
po stings ) as evidence that the Commission-approved information in these exhibits is
undisputed.
While, at this time, Qwest s negotiations template proposal contans the latest
Commission approved Exhibits B and K, the Qwest template does not include the latest
26
Some of the other Exhibits are updated as set fort in the SGAT. See, e.g., SGAT §12.2.6
("Exhibit G wil be subject to change through the CMP process, as set fort in the CMP Document. Qwest
wil maintain the most curent version ofthe CMP Document on its wholesale website.").27 See ACC Decision No. 66201, p. 28 ("It is fuher ordered that Qwest Corporation's SGAT, as
modified from time to time after Commission approval, shall remain available, as the stadard
interconnection agreement, until the Commission authorizes otherwise.") (emphasis added).28 Arizona 14th Revised SGAT, effective 10/29/03.
29 htt://www.qwest.com/about/policy/sgats/SGATSdocs/arizona/AZ 14th Rev 3rd
Amend Exh A 2 10 05 Clean. pdf30 - -----Notice of Filng, In the Matter of Qwest Corporation's Performance Assurance Plan, Docket No.
T-0105lB-03-0859, June 19,2008.
31 Order Decision No. 70386, In the Matter of Qwest Corporation's Performance Assurance Plan,
Docket No. T-OI05lB-03-0859, June 13,2008, p. 15, lines 2-5: "IT IS THERFORE ORDERED that
Qwest Corporation shall file with Docket Control, as a compliance item in this docket, revised Exhibits K
and B to its Arona SGAT consistent with the Stipulation Regarding Certain Performance Indicator
Definitions and Qwest Performance Assurance Plan Provisions fied on June 22, 2007, within 30 days of
the effective date of this Decision."
16
Commission approved Exhibit A. For certn rate elements in Exhbit A of Qwests
negotiations template, Qwest has chosen to ignore or eliminate Commission approved
rates and instead insert rates reflecting Qwest s negotiations position.32 Because, on the
surace, Qwest s negotiations template Exhibit A looks similar to the SGAT Exhibit A,
CLECs looking to these documents may be confused by Qwest s approach and
erroneously believe that Exhibit A to Qwests negotiations template reflects this
Commission's decisions regarding rates.
Qwest agreed and the Minnesota Commission required33 Qwest to identify Minnesota
Commission approved rates that are different from rates contaned in Qwest's
negotiations template.34
Respondent: Douglas Denney, Integra - Joint CLEC Witness
32 For example, see Qwest Negotiations Template Exhibit A at §§7.9 (trsit), 9.6.8 and 9.23.6.6
(multiplexing), 9.9 (UCCRE) and 9.20.14 (Expedites). Note, this is not an exhaustive list of differences,
but only a sample of some ofthe issues.33 Order Approving Stipulation, with Clarfication, In the Matter ofQwest's Applicationfor
Commission review of TEL RIC Rates Pursuant to 47 U.S.c. § 251, MPUC Docket No. P-421/AM-06-713,
Issued September 18,2008, Stipulation and Agreement, p. 7.
34 For example, footnote 7 in §7.9 (trsit) of Qwest's MN SGAT Exhibit A
(http://www.qwest.com/about/policy/sgats/M.html)reads: "This Rate varies from the rate listed in the
Negotiations Template."
17
STF REQUEST NO. 1.8
What are the ramifications with respect to the attachments to Qwests SGAT (including
the QP AP), if it is no longer a par of a Commission approved SGAT or template
interconnection agreement?
JOINT CLEC RESPONSE TO STF NO. 1.8:
The lack of a reliable source of Commission approved rates (Exhibit A) and Commission
approved PIDIPAP terms (Exhbits B and K), see Joint CLEC Response to STF No. 1.7,
fuer skews the advantage in negotiations away from CLECs and toward Qwest.
Paricularly because of Qwest s generally greater resources and its paricipation in all
Qwest proceedings, the lack of a clear source of compliance filings for Commission
orders for rates and/or the PIDIP AP heavily favors Qwest to the disadvantage of CLECs
in negotiation. Eliminating SGAT Exhibits A, B and K would allow Qwest to effectively
ignore Commission orders in favor of Qwest s preferred rates and performance
measurement terms when negotiating with CLECs, in a maner in which the difference
between Qwest s position and the Commission's order would be obscured. If a CLEC
agrees to a rate or performance term different from the SGAT, it should be because the
CLEC makes an informed decision to do so and not because the Commission's order is
obscured. Compliance fiings are often used to clearly delineate the principles outlined in
an order. Without ready access to the compliance filing in the form of exhibits to the
SGAT, disputes about the terms of the Commission's previous orders are more likely.
Qwest should not be allowed to in effect alter a Commission-order as a result of limiting
information available to CLECs regarding the implication of Commission decisions.
Raifications of allowing Qwest to withdraw attchments/exhbits to the SGAT are
evident from the maner in which Qwest has deviated from the SGAT attachments in its
template negotiations proposaL. (Regarding differences in rates, see Joint CLEC
Response to STF No. 1.7.) Qwest dictates which attchments and exhibits to the SGAT it
will make available to CLECs aSfar of its template (which it requires CLECs to use as a
"staring point" for negotiations3 ). For example, Section 1.7 of the SGAT contains
procedures and interim procedures for new products, and it refers to Exhibit L (Advice
Adoption Letter) and Exhibit M (Interim Advice Adoption Letter). Eschelon recently
relied upon this SGA T languge and pointed out the advantages of these streamlined
procedures in its arbitration with Qwest, in which Eschelon modeled its proposal for
intervals after the languge in Section 1.7.36 The Commission adopted Eschelon's
proposal for this Issue (1_1).37 Qwest, however, has completely deleted Section 1.7 and
Exhibits L and M from its negotiations template (with no reference to their ever having
been in the SGAT). Qwests template states that Section 1.7 is "intentionally left blan."
35 See Joint CLEC Response to STF No. 1..
See, e.g., Qwest-Eschelon AZ ICA Arbitrtion, Hrg. Ex. E-7 (Stakey Rebuttl), pp. 48-50. (Bates
Nos. 104-106)37 Qwest-Eschelon AZ ICA Arbitration, Decision No. 70356, p. 7, lines 3-4.
36
18
Similarly, for Exhibit G (the Change Management Process (CMP) Document), Qwests
template states "intentionally left blan." Although, at this time, the body of Qwests
template refers to CMP (e.g., Section 12.2.6), that language does not contain key
provisions of the CMP Document (such as the requirement in CMP Document Section
2.1 of a unanimous vote to change the CMP Document). If it is not clear that the existing
CMP Document, as modified only by a unanmous vote, is par of the ICA, Qwest may
argue that it is not bound by the ICA to terms in the CMP Document that it agreed to for
the purose of gaining authority to enter into the long distace market, even though it
now enjoys the benefits of having entered that market.
Respondent: Douglas Denney, Integra - Joint CLEC Witness
19
STF REQUEST NO. 1.9
Qwest was required by a prior Commission order to obtain Commission approval before
it withdraws its SGAT in Arzona. Qwest recently filed for formal approval from the
Commission to withdraw its SGAT that is on file with the Commission in Arzona. Does
your Company oppose such approval by the Arizona Corporation Commission? If yes,
please explain your answer.
JOINT CLEC RESPONSE TO STF NO. 1.9:
Yes. The Joint CLECs recommend agaist allowing Qwest to withdraw the SGAT. The
SGAT should remain available for opt-in subject to its change in law provision, and
Qwest should be required to continue to file updated Exhbits A, B, and K to the SGAT
for approval. (See Joint CLEC Response Nos. 1.4, 1.5, 1.7-1.9 & 1.11.)
Respondent: Douglas Denney, Integra - Joint CLEC Witness
20
STF REQUEST NO. 1.10
If the Commission were to order Qwest to file its template interconnection agreement
with the Commission for approval in place of its curent SGAT, does CLEC believe that
modifications to the template interconnection agreement would be appropriate or
necessary? If yes, please explain your answer.
JOINT CLEC RESPONSE TO STF NO. 1.10:
Yes. Joint CLECs believe that extensive modifications to Qwests template proposal
would be needed. Section 252(f)(2) provides that the Commission "may not approve" a
filing of generally available terms without finding that the standards of Sections 252( d)
and 251 and the regulations thereunder have been met. Qwest has made no showing that
its going in negotiation positions in its template meet those standards. Even assuming
any CLECs have voluntarly entered into some or all of Qwest's template terms,
volunta negotiations are measured by the stadard of Section 252(a) and therefore do
not provide a basis to conclude that the terms meet the standards of Sections 252( d) and
251 and the regulations thereunder.
Respondent: Douglas Denney, Integra - Joint CLEC Witness
21
STF REQUEST NO. 1.11
If the Commission was to order Qwest to fie its template interconnection agreement with
the Commission for approval, what process would your Company recommend for
Commission review and modification of the document?
JOINT CLEC RESPONSE TO STF NO. 1.11:
Joint CLECs recommend rejection of the Qwest negotiations template ICA proposaL.
There should be no presumption of validity or compliance associated with Qwest s
going-in negotiations positions in ths proceeding or in ICA arbitrations. (See Joint
CLEC Response to STF No. 1.4.) An express rejection of Qwests template proposal as
any kind of SGAT replacement or "stadard" ICA, along with an express statement that
there is no such presumption associated with it, would assist in leveling the playing field
in ICA negotiations and arbitrations, where curently Qwest attempts to shift the burden
to CLECs to disprove Qwest template proposals, to the extent that Qwest will negotiate
them at alL. 38 (See id.)
If the Commission nonetheless orders Qwest to fie its negotiations template ICA
proposal, the Commission should require Qwest to, at a minimum, identify each
difference from the SGAT, state the basis for each change (including specific citations to
legal authority), identify each template provision that a CLEC(s) has requested to modify,
identify any ICAs or ICA amendments contaning agreed upon modifications, and
identify each template provision that has been rejected or modified by a state commission
(e.g., Qwest language proposals based on its template that the Commission rejected in
ICA arbitrations). The Staff should then review the fied information, conduct discovery
of Qwest as needed, and make recommendations based on the applicable legal stadards
and public policy. Section 252(f)(2) provides that the Commission "may not approve" a
filing of generally available terms without finding that the standards of Sections 252( d)
and 251 and the regulations thereunder have been met.
No adverse inference should be drawn from CLEC minimal or non-paricipation in
opposition to Qwest s filing, paricularly given Qwest s earlier refusal to collaboratively
develop template terms and the belatedness of Qwest s filing causing this proceeding to
occur in these economic times. (See Joint CLEC Response to STF No. 1.4.)
Paricularly given Qwests conduct to date, a better solution is for the Commission to (1)
confirm that the SGAT remains available, subject to its change in law provisions (see
Joint CLEC Response to STF No. 1.5.), and (2) expressly reject Qwests template ICA
proposal as any kind ofSGAT replacement or "standard" ICA, along with expressly
stating that there is no presumption of validity or compliance associated with Qwest s
template ICA proposaL. The Commission should also ensure centrally located and readily
identifiable web posting of CLEC ICAs available for opt-in in Arzona. (See Joint CLEC
Response to STF No. 1.4.)
Respondent: Douglas Denney, Integra - Joint CLEC Witness
38 See, e.g., Qwest-Eschelon AZ ICA Arbitrtion, Hrg. Ex. E-16 (Denney Sureb.), p. 138, line 16
("Qwest refuses to negotiate rates as par of this arbitration").
22